Gene HealyCommentary, analysis, insight from the Foundation for Economic Educationhttps://fee.org/feed?author=gene-healy2017-12-13T21:17:28-05:00Gene Healyhttps://fee.org/people/gene-healy/ghealy@thefreemanonline.orgFEE.org Feeds by DavidVhttps://fee.org/articles/how-trump-learned-to-love-tomahawks-more-than-twitter/How Trump Learned to Love Tomahawks More than TwitterIn the airstrike response, we see the presidential lure to bypass the constitution.2017-04-12T09:45:55-04:002017-04-12T09:45:55-04:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/22098/tomahawk_missile_mini.jpg"/> <p>Speaking to reporters aboard Air Force One on April 6th, President Trump strongly condemned the recent nerve gas attack in Northern Syria: “I think what Assad did is terrible…. a disgrace to humanity,” he declared:<span> </span><a href="http://www.cnn.com/2017/04/06/politics/donald-trump-syria-options/">“something should happen.”</a><span> </span>That night, US forces hit a Syrian airfield with 59 Tomahawk missiles launched from destroyers in the Eastern Mediterranean. This was something, and it happened. For a political outsider, Trump’s picked up<span> </span><a href="https://m.youtube.com/watch?v=trw1PbQt_Yo">“politician’s logic”</a><span> </span>pretty fast. </p>
<p><span class="rte-quote">The airstrikes confirm the worst fears about our 45th president’s hair-trigger temperament and disdain for legal limits on his ability to wage war.</span></p>
<p>I won’t hazard a guess at what Trump’s exercise in Tomahawk humanitarianism means for our ongoing involvement in the Syrian civil war. His own Secretary of State is less than coherent on the subject, alternately announcing that<span> </span><a href="https://www.yahoo.com/news/tillerson-steps-way-remove-assad-power-syria-200018022.html">“steps are underway”</a><span> </span>to remove Assad and that there’s been “no change” in US “policy or posture relative to our military activities in Syria.” But the airstrikes are clarifying in one respect: they confirm the worst fears about our 45th president’s hair-trigger temperament and disdain for legal limits on his ability to wage war.</p>
<p><strong>Legal Authority</strong></p>
<p>Thus far, the administration has said nothing about the legal authority for the strikes. There’s not much that can be said: they’re plainly illegal. He had neither statutory nor constitutional authority to order them.</p>
<p>Earlier today, Sen. John McCain<span> </span><a href="https://twitter.com/loopemma/status/850380534312292352">insisted</a><span> </span>that the strikes were covered by the Authorization for the Use of Military Force (AUMF) Congress passed in 2001. True, the 2001 AUMF, targeting the perpetrators of the 9/11 attacks, has proven an impressively stretchable statute: in Syria alone it already supposedly covers Al Qaeda affiliates and<span> </span><a href="http://www.dailymail.co.uk/news/article-3139194/12-victims-12-masked-executioners-ISIS-beheads-dozen-men-accused-fighting-Al-Qaeda-new-sickening-video.html">the ISIS operatives beheading them</a>. But it’s hard to see how it can be stretched far enough to underwrite military action against Assad, who’s at war with both.</p>
<p>The legislators who voted for that AUMF in 2001 thought they were authorizing our 43rd president to fight Al Qaeda and the Taliban; it’s safe to say none of them imagined they were giving our 45th president the power to take all sides in a future Syrian civil war.</p>
<p><span class="rte-quote">“It was still a choice, not a necessity, to go to Congress because ‘it’s not like the lawyers couldn’t have come up with a theory.'"</span></p>
<p>Without statutory cover, all that’s left is an appeal to presidential power under Article II of the Constitution. But that document vests the bulk of the military powers it grants in Congress, with the aim of “clogging, rather than facilitating war,” as George Mason put it. In that framework, the president retains the power to “repel sudden attacks” against the US; but he does not have the power to launch them.</p>
<p>Candidate Barack Obama had it right in 2007 when he told reporter Charlie Savage that “The President<span> </span><a href="http://archive.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/">does not have power</a><span> </span>under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”</p>
<p>As president, Obama violated that pledge repeatedly, but his decision not to attack Syria after its use of chemical weapons in 2013 was one of the few occasions where he honored it. While insisting in public that he had all the authority he needed to wage war without Congress, in private, Obama told aides he agreed with the position he’d outlined to Savage in 2007. Still, Obama aide Ben Rhodes told Savage, “it was still a choice, not a necessity, to go to Congress because ‘it’s not like the lawyers couldn’t have come up with a theory.’”</p>
<p><strong>Systemic Temptation</strong></p>
<p>While we’re waiting to see what legal theory Trump’s lawyers come up with, it’s worth worrying about the practical dangers presented by a system that allows the president to wage war at will. </p>
<p>The Framers’ allocation of constitutional war powers was informed by their skeptical view of human nature. As<span> </span><a href="http://files.libertyfund.org/pll/quotes/136.html">Madison put it</a>:</p>
<blockquote>
<p>In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.” </p>
</blockquote>
<p>In the 70-odd days since he became president, Donald Trump has been finding out the hard way that government doesn’t work like a business. Judges can push back; the Freedom Caucus won’t vote for your bill just because you told them to.</p>
<p>The buck may stop at the president’s desk when it comes to public expectations, but the threat of “you’re fired” is of limited use when the president’s facing down the permanent bureaucracy or coordinating branches of government. Contemplating the prospect of an Eisenhower presidency, Harry Truman famously remarked: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army.”</p>
<p><span class="rte-quote">His drive-by bombing has already earned him strange new respect from neoconservative #NeverTrump-ers.</span></p>
<p>Except, of course, when it comes to ordering the US military into battle: the president’s role as commander-in-chief of US armed forces is one of the few aspects of the job where his power matches his absurdly vast responsibilities. He can say “do this! Do that!”—and something will happen. And that can be tempting, particularly when your approval ratings are about<span> </span><a href="http://theweek.com/speedreads/689143/president-trumps-approval-rating-just-dropped-historic-low">where Nixon’s were</a> as Watergate unfolded.</p>
<p><strong>Airstrike Approval</strong></p>
<p>As my colleague Julian Sanchez warns, “We are at the extremely dangerous stage where Trump is realizing he can automatically command the news cycle by ordering missile strikes.”</p>
<p>Worse still, he can also – at least temporarily<span> – </span>get the approval he seems to crave. His drive-by bombing has already earned him strange new respect from neoconservative #NeverTrump-ers, who appear to believe that the mercurial celebreality billionaire is at his least frightening when he’s literally blowing things up. Centrist pundit Fareed Zakaria <a href="http://thehill.com/homenews/administration/327779-cnn-host-donald-trump-became-president-last-night">echoed that grotesque logic on CNN</a>: “I think Donald Trump became president of the United States [that] night.”</p>
<p>As much as he disdains the media establishment, Trump revels in this sort of praise. It may not be long before he free-associates about it in interviews: “my airstrikes – which got terrific ratings, by the way….” And when the glow fades, he may be tempted to light it up again.</p>
<p style="text-align: right;"><em>Republished from the <a href="https://www.cato.org/blog/trump-unleashed">Cato Institute</a>.</em></p>https://fee.org/articles/the-endless-war-creeps-into-syria/The Endless, Illegal War Creeps Into Syria Obama promised to end two wars, but he'll leave with three 2015-11-03T11:00:00-05:002015-11-03T11:00:00-05:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/12442/1-shutterstock_241571134.jpg"/> <div class="node-body body-text">
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<p><span>In the 15 months since the president unilaterally launched our latest war in the Middle East, he’s <a href="http://www.usatoday.com/story/news/politics/onpolitics/2015/10/30/16-times-obama-said-there-would-no-boots-ground-syria/74869884/" target="_blank">repeatedly pledged</a> that he wouldn’t put US “boots on the ground” in Syria. </span></p>
<p><span>As he told congressional leaders on September 3, 2014, “the military plan that has been developed” is limited, and doesn’t require ground forces. </span></p>
<p><span>Alas, if you liked that plan, you can’t keep it. Earlier today, the Obama administration announced the <a href="http://www.nytimes.com/2015/10/31/world/obama-will-send-forces-to-syria-to-help-fight-the-islamic-state.html?_r=0" target="_blank">deployment of US Special Forces to Northern Syria</a> to assist Kurdish troops in the fight against ISIS. </span></p>
<p><span>US forces will number “fewer than 50,” in an “advise and assist” capacity; they “do not have a combat mission,” according to White House press secretary Josh Earnest. Granted, when “advise and assist” missions <a href="http://abcnews.go.com/Politics/soldier-killed-iraq-raid-belonged-delta-force/story?id=34676330" target="_blank">look like this</a>, it can be hard for us civilians to tell the difference. </span></p>
<p>Asked about the legal authorization for the deployment, <a href="https://grabien.com/file.php?id=63173&amp;searchorder=date" target="_blank">Earnest insisted</a>: <span>“Congress in 2001 did give the executive branch the authority to take this action. There’s no debating that.”</span></p>
<p><span>It’s true that there hasn’t been anything resembling <a href="http://www.cato.org/events/fight-isis-one-year-counting-unauthorized-war">a genuine congressional debate</a> over America’s war against ISIS. But the administration’s legal claim is eminently debatable. </span></p>
<p><span>It’s based on the <a href="https://www.fas.org/sgp/crs/natsec/RS22357.pdf">2001 authorization</a> for the use of military force, or AUMF, the Congress passed </span><span>three days after 9/11, targeting those who “planned, authorized, [or] committed” the attacks (Al Qaeda) and those who “aided” or “harbored” them (the Taliban).</span></p>
<p>In 2013, Obama administration officials told the <em>Washington Post</em> that they were “increasingly concerned the law is being <a href="https://www.washingtonpost.com/world/national-security/administration-debates-stretching-911-law-to-go-after-new-al-qaeda-offshoots/2013/03/06/fd2574a0-85e5-11e2-9d71-f0feafdd1394_story.html" target="_blank">stretched to its legal breaking point.</a>” That was <em>before</em> they’d stretched it still further, 15 months later, to justify war against ISIS, a group that’s been <a href="http://www.brookings.edu/research/articles/2015/02/24-byman-williams-isis-war-with-al-qaeda" target="_blank">denounced and excommunicated by Al Qaeda</a> and is engaged in open warfare with them. </p>
<p><span>Headlines like “</span><a href="http://www.ibtimes.co.in/syria-isis-beheads-leader-al-qaeda-offshoot-nusra-front-raqqa-636549" target="_blank">ISIS Beheads Leader of Al Qaeda Offshoot Nusra Front</a><span>,” or </span><a href="http://www.thedailybeast.com/articles/2015/08/31/petraeus-use-al-qaeda-fighters-to-beat-isis.html" target="_blank">“Petraeus: Use Al Qaeda Fighters to Beat ISIS”</a><span> might give you cause to wonder — or even debate! — whether this is the same enemy Congress authorized President Bush to wage war against, back <a href="http://techland.time.com/2013/10/23/watch-steve-jobs-unveil-the-ipod-12-years-ago/" target="_blank">before Steve Jobs unveiled the first iPod</a>. </span></p>
<p><span>In the Obama theory of constitutional war powers, Congress gets a vote, but it’s one Congress, one vote, one time. This is not how constitutional democracies are supposed to go to war. But it’s how we’ve drifted into a war that the Army chief of staff has said will last <a href="http://www.defensenews.com/story/defense/2015/07/17/odierno-isis-fight-last-10-20-years/30295949/" target="_blank">“10 to 20 years.”</a> </span></p>
<p><span>Sooner or later, we’ll have cause to regret the normalization of perpetual presidential war, but any congressional debate we get will occur only after the damage has already been done.</span></p>
<p style="text-align: right;"><em><a href="http://www.cato.org/blog/more-mission-creep-illegal-war">Cross-posted from Cato.org.</a></em></p>
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</div>https://fee.org/articles/carter-s-iran-hostage-rescue-the-worst-bad-idea/Carter’s Iran Hostage Rescue Was “The Worst Bad Idea”Actually, “Operation Honey Badger” may have been worse2015-09-14T08:00:00-04:002015-09-14T08:00:00-04:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/12062/rh-53seastallioniranoperation.jpg"/> <p>“As health concerns for former President Carter mount,” <a href="http://www.cato.org/blog/reviewing-carters-deregulatory-record">Caleb Brown noted recently in this space,</a> “it’s nice to be able to look back on his time in the White House and see something remarkably positive.”</p>
<p>Indeed, our 39th president doesn’t remotely merit the bad rap he gets from conservatives and libertarians.</p>
<p>As I wrote <a href="http://www.cato.org/publications/commentary/only-obama-were-good-carter">a few years back</a>, “at its best, the Carter legacy was one of workaday reforms that made significant improvements in American life: cheaper travel and cheaper goods for the middle class.” </p>
<p>For loosening controls on <a href="http://object.cato.org/pubs/gasoline_price_controls.pdf">oil</a>, <a href="http://www.cato.org/sites/cato.org/files/serials/files/regulation/1988/10/reg12n3-moore.html">trucking</a>, <a href="http://object.cato.org/sites/cato.org/files/serials/files/regulation/2010/12/regv33n4-5.pdf">railroads</a>, and <a href="http://www.econlib.org/library/Enc1/AirlineDeregulation.html">airlines</a>, he should, <a href="http://fee.org/anythingpeaceful/jimmy-carter-was-a-better-president-than-you-think/">Daniel Bier suggests</a>, be thought of as “the Great Deregulator.”</p>
<p>It’s in no small part <a href="http://www.kegworks.com/blog/how-jimmy-carter-sparked-the-craft-beer-revolution/">thanks to him</a> that conservatives can cry in their microbrews over the sorry state of the 2016 Republican field. </p>
<p>So the man from Plains has a lot to be proud of. In the coming months, I hope he’ll have the consolation of seeing the record corrected and his historical reputation start to rise.</p>
<p>Judging by his recent press conference announcing his illness, however, Carter shares a widely held misconception about where his presidency went wrong. Asked about his regrets, <a href="http://www.latimes.com/world/middleeast/la-fg-carter-one-more-helicopter-to-iran-20150820-htmlstory.html">he answered</a>: “I wish I’d sent one more helicopter to get the hostages and we would have rescued them and I would have been re-elected.”</p>
<p>Carter was referring to “Operation Eagle Claw,” the aborted Iranian hostage rescue attempt in April 1980. If you’re old enough, you probably remember: the operation never got past the initial “Desert One” rendezvous point, due to the mechanical failure of three helicopters, and eight US soldiers were killed during departure when a helicopter collided with a transport plane. </p>
<p>The botched rescue attempt definitely contributed to Carter’s defeat. But the mission failed during the <em>“easy”</em> part; when you look at what was supposed to come next, it’s hard not to think the whole operation would have been the Bay of Pigs meets Black Hawk Down.</p>
<p>Writing in the <a href="http://www.airpower.maxwell.af.mil/apjinternational/apj-s/2006/3tri06/kampseng.html"><em>Air &amp; Space Power Journal </em>in 2006</a>, war gaming professor Charles Tustin Kamps observed that “the things which did cause the mission to abort were probably merciful compared to the greater catastrophe which might have taken place if the scenario had progressed further than the Desert One rendezvous.” </p>
<p>“In the realm of military planning there are plans that might work and plans that won’t work,” Kamps writes. “In the cold light of history it is evident that the plan for Eagle Claw was in the second category.” It would have required “the proverbial seven simultaneous miracles” to succeed. </p>
<p><a href="http://www.afhso.af.mil/topics/factsheets/factsheet.asp?id=19809">Here’s what was supposed to happen</a>, per the Eagle Claw factsheet at the Air Force Historical Support Division website: </p>
<blockquote>[Eagle Claw] called for three USAF MC-130s to carry a 118-man assault force from Masirah Island near Oman in the Persian Gulf to a remote spot 200 miles southeast of Tehran, code-named Desert One. Accompanying the MC-130s were three USAF EC-130s which served as fuel transports.</blockquote>
<blockquote>The MC-130s planned to rendezvous with eight RH-53D helicopters from the aircraft carrier USS Nimitz.</blockquote>
<blockquote>After refueling and loading the assault team, the helicopters would fly to a location 65 miles from Tehran, where the assault team would go into hiding. The next night, the team, dependent upon trusted agents, drivers, and translators [provided by the CIA], would be picked up and driven the rest of the way to the embassy compound.</blockquote>
<p>Meanwhile, a separate 13-man team would peel off to attack the Foreign Ministry building and rescue three hostages being held there, as the main Delta group hit the embassy. </p>
<blockquote>After storming the embassy, the team and the freed hostages would rally at either the embassy compound or a nearby soccer stadium to be picked up by the helicopter force. The helicopters would then transport them to Manzariyeh, 35 miles to the south, by that time secured by a team of U.S. Army Rangers.</blockquote>
<blockquote>Once at Manzariyeh USAF C-141 transports would fly the assault team and hostages out of Iran while the Rangers destroyed the remaining equipment (including the helicopters) and prepared for their own aerial departure.</blockquote>
<blockquote>An extremely complex operation, Eagle Claw depended on everything going according to plan. Any deviation could cause the entire operation to unravel with possibly tragic consequences.</blockquote>
<p>Just in case things <em>didn’t</em> go exactly according to plan, the Delta guys were issued this handy <a href="http://nsarchive.gwu.edu/nsa/DOCUMENT/930728.htm">“Farsi Survival Guide”</a> (one page of which is pictured below) to help them bargain and cajole their way out of the country without blowing their cover. For example, <a href="http://nsarchive.gwu.edu/nsa/DOCUMENT/DOC-PIC/930728_1.gif">they could try something like</a>: “You Iranians and Moslems are famous for hospitality. For the sake of God, I need your help.”</p>
<p>In real life, things started going wrong almost instantly:</p>
<blockquote>Soon after the first MC-130 arrived [at Desert One] … a passenger bus approached on a highway bisecting the landing zone. The advance party was forced to stop the vehicle and detain its 45 passengers.</blockquote>
<blockquote>Soon, a fuel truck came down the highway. When it failed to stop, the Americans fired a light anti-tank weapon which set the tanker on fire and lit the surrounding area.</blockquote>
<p>In a riveting 2006 <em>Atlantic </em>article, <a href="http://www.theatlantic.com/magazine/archive/2006/05/the-desert-one-debacle/304803/">“The Desert One Debacle,”</a> <em>Black Hawk Down</em> author Mark Bowden described the resulting chaos: </p>
<blockquote>Suddenly the night desert flashed as bright as daylight and shook with an explosion. In the near distance, a giant ball of flame rose high into the darkness. One of the Rangers had fired an anti-tank weapon at the fleeing truck, which turned out to have been loaded with fuel. It burned like a miniature sun. So much for slipping quietly into Iran.</blockquote>
<p>Eight copters left the <em>Nimitz</em>; two had to turn back on route due to mechanical problems. Of the remaining six that made it through the vicious sandstorms (or “haboobs”) on the way to Desert One, another arrived with irreparable hydraulic problems. The plan called for a minimum of six helicopters; down to five, on-scene commander Col. Charles Beckwith had little choice but to cancel the mission.</p>
<p>As the force began to evacuate, “tragedy struck. One of the helicopters’ rotor blades inadvertently collided with a fuel-laden EC-130. Both aircraft exploded, killing five airmen on the EC-130 and three marines on the RH-53.”</p>
<p>Had Beckwith <em>not</em> hit “abort,” however, it’s easy to imagine that most if not all of the assault force would have been captured or killed and none of the hostages would have made it.</p>
<p>Bowden quotes a Delta Force officer who summed it up well: “The only difference between this and the Alamo is that Davy Crockett didn’t have to fight his way in.”</p>
<p>This, <a href="http://https/www.youtube.com/watch?v=j--JqYjvdYk">to paraphrase <em>Argo</em></a>, was the worst bad idea we had.</p>
<p>Wait, scratch that: actually, the <em>worst</em> idea was the follow-up plan developed by the military after the Desert One debacle. According to Carter’s national security adviser Zbigniew Brzezinski: </p>
<blockquote>The second plan involved going into the airport at Tehran, taking the airport, shooting up anything in the way, bombing anything that starts interfering, storming the embassy, taking out anybody who’s alive after that process and then going back and taking off.</blockquote>
<p>Except the hostages had been moved out of the embassy after the first failed attempt, and the commandos would have had to try to find them at remote locations. Everybody was supposed to reconvene at the Tehran soccer stadium where a C-130, jerry-rigged with rockets so it could take off and land like a <a href="http://https/en.wikipedia.org/wiki/Accidents_and_incidents_involving_the_V-22_Osprey">V-22 Osprey</a>, would whisk them to safety.</p>
<p>You can watch the modified C-130 crash and burn <a href="https://youtu.be/5gXfK4ypirI">in a test video here</a> (luckily no one was hurt). </p>
<p>The code name for this scheme? “<a href="http://swampland.time.com/2013/11/04/the-incredible-iranian-hostage-rescue-plan-that-never-happened/">Honey Badger</a>.”</p>
<p>Yes, the second rescue plan took its moniker from the <a href="http://honeybadger.com/">“tenacious small carnivore”</a> identified by the <em>Guinness Book of World Records </em>as “the most fearless animal in the world,” and later the subject of that inescapable 2011 YouTube video — to wit: </p>
<blockquote>The honey badger don’t care! It’s getting stung like a thousand times. It doesn’t give a [expletive deleted]. It’s just hungry. It doesn’t care about being stung by bees. Nothing can stop the honey badger when it’s hungry. What a crazy [expletive deleted]!</blockquote>
<p>(Trigger warning: expletives <em>not</em> deleted <a href="http://https/www.youtube.com/watch?v=4r7wHMg5Yjg">in viral video link</a>.)</p>
<p>As Michael Crowley noted in <a href="http://swampland.time.com/2013/11/04/the-incredible-iranian-hostage-rescue-plan-that-never-happened/">a <em>Time</em> article</a> reporting on the scheme, Honey Badger was likely “a last-resort contingency in case Iran began executing the hostages without provocation” — a desperate measure if all else failed. What’s really astounding is that the original plan, Eagle Claw, got the go-ahead in far less desperate circumstances.</p>
<p>Relentless public pressure to <a href="http://www.cato.org/blog/do-something-superpresident">“do something!”</a> often leads presidents to do something stupid. The hostage rescue mission was not Jimmy Carter’s finest hour. But it could have been much worse.</p>
<p style="text-align: right;"><em><a href="http://www.cato.org/blog/eagle-claw-honey-badger">This post first appeared at Cato.org.</a></em></p>https://fee.org/articles/is-donald-the-most-hawkish-candidate-sadly-no/Is Donald the Most Hawkish Candidate? Sadly, No.On war, his competitors outpace his mindless authoritarianism2015-09-03T08:10:55-04:002015-09-03T08:10:55-04:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/11954/gop-2016-trumpjpeg13-1280x960.jpg"/> <p>I’d have figured that the category of “Trump supporters who are aware of the <em>Atlantic Monthly</em>” would be an empty set, but it turns out there are at least 30 of them. Last month, in <a href="http://www.theatlantic.com/politics/archive/2015/08/a-letter-to-donald-trump-supporters-with-one-big-question/401198/" target="_blank">an open letter to Trump fans</a>, the <em>Atlantic</em>’s Conor Friedersdorf asked “<em>why him</em>?”, and he published the results: <a href="http://www.theatlantic.com/politics/archive/2015/08/donald-trump-voters/401408/" target="_blank">“What Do Donald Trump Voters Actually Want?”</a></p>
<p>The funniest responses tend toward the nihilistic: “I really am at the point of letting the whole thing burn down and explode…. Like the joker from The Dark Knight, <a href="/umbraco/&quot;http:/www.theatlantic.com/politics/archive/2015/08/donald-trump-voters/401408/">I just want to see the world burn</a>”; or, “<a href="http://www.theatlantic.com/politics/archive/2015/08/donald-trump-voters/401408/">I just want to watch the chaos</a> unfold …. I’m a young guy who is immature, a bit antisocial, and with no plans for kids or a wife ever. At some level, I don’t really care how things go with America as long as it’s fun to watch.”</p>
<p>(Say what you want about the tenets of Trumpism: at <a href="http://artsbeat.blogs.nytimes.com/2009/12/30/lebowski-studies-101-at-least-its-an-ethos/" target="_blank">least it’s not an ethos</a>!)</p>
<p>But if watching things burn down and blow up is what you want out of politics, the other candidates may have a lot more to offer you — or so I argue in a column for the <em>Federalist</em> this week, “<a href="http://thefederalist.com/2015/08/17/trumps-biggest-lie-im-the-most-militaristic-person-in-this-race/" target="_blank">Trump’s Biggest Lie: ‘I’m The Most Militaristic Person’ In This Race</a>.”</p>
<p>That’s what Trump said upon his return from exile to <em>Fox News</em>, and, even for the Donald, it’s a boast too far. The fact is, “in the 2016 election cycle, the ‘serious and responsible’ candidates for the presidency are so bellicose they make Trump look like <a href="http://https/en.wikipedia.org/wiki/Cindy_Sheehan" target="_blank">Cindy Sheehan</a>.”</p>
<p>To take just a couple of examples from the piece, there’s:</p>
<blockquote>
<p>Wisconsin governor Scott Walker, who in June, refused a reporter’s invitation to rule out <a href="http://dailycaller.com/2015/06/07/scott-walker-wont-rule-out-another-full-blown-invasion-of-iraq-video/" target="_blank">“a full-blown re-invasion of Iraq,”</a> and in July, announced that he’d “very possibly” need to start bombing Iran <a href="http://www.weeklystandard.com/blogs/bush-vs-walker-catches-fire-over-iran-nuclear-deal_994073.html" target="_blank">on his first day in office</a>.</p>
</blockquote>
<p>And there’s Florida senator Marco Rubio, who</p>
<blockquote>
<p>stands out among his competitors as the sole Republican to argue that Obama’s real mistake in Libya was that he didn’t start bombing <a href="http://www.freerepublic.com/focus/news/2690447/posts" target="_blank">even sooner</a>.</p>
<p>Rubio wants to double down on the profligate interventionism of the George W. Bush era so badly that he’s built his campaign on B-movie slogans and neocon buzzwords.</p>
<p>A <a href="http://www.washingtonpost.com/news/post-politics/wp/2015/05/09/republican-presidential-hopefuls-intensify-anti-terrorism-message-we-will-kill-you/" target="_blank">Liam-Neeson-style</a> “we will find you; and we will kill you” [is his] message to ISIS… and his website promises <a href="http://www.weeklystandard.com/blogs/rubio-video-calls-new-american-century_915383.html" target="_blank">“A New American Century,”</a> — a pledge that ought to give pause to anybody old enough to remember <a href="http://https/en.wikipedia.org/wiki/Project_for_the_New_American_Century" target="_blank">how that worked out</a> in the last decade.</p>
</blockquote>
<p>Even candidates with residual sympathy toward an earlier tradition of Republican realism have begun to toe the party line. Rand Paul has begun to sound <a href="http://www.buzzfeed.com/andrewkaczynski/rand-paul-says-hed-support-using-military-force-if-iran-was#.ciO3gpP9mw" target="_blank">distinctly hawkish</a> lately, and Jeb Bush has decided it just “wouldn’t be prudent” to hire a <a href="http://blogs.wsj.com/washwire/2015/04/08/gop-foreign-policy-factions-tussle-for-sway-in-jeb-bush-campaign-team/" target="_blank">foreign policy director who’s skeptical about bombing Iran</a>.</p>
<p>Trump, on the other hand, seems determined to demonstrate his unseriousness by <a href="http://www.nj.com/politics/index.ssf/2015/08/trump_iraq_war_elevated_iran.html" target="_blank">denouncing the Iraq War</a>, saying he <a href="http://news.yahoo.com/departure-republicans-trump-wouldnt-rip-iran-deal-172640551.html" target="_blank">wouldn’t “rip up” the Iran deal</a>, and complaining that America has become <a href="http://www.cnn.com/2015/07/31/politics/doanld-trump-crimea-europe-problem/" target="_blank">“the policeman of the world.”</a></p>
<p>Meanwhile, no one in this crowd can out-hawk Hillary Clinton, whose long, ghoulish career can be summed up in her own words, <a href="http://www.washingtonexaminer.com/who-would-hillary-clinton-bomb/article/2549513" target="_blank">“I urged him to bomb.”</a> </p>
<p>“We came, we saw, he died,” is how HRC greeted the news that Colonel Qaddafi had been killed by a rebel mob. The best the Donald could do was brag about how this one time, he really <a href="http://www.nydailynews.com/news/politics/donald-trump-foreign-policy-experience-screwing-moammar-khadafy-real-estate-deal-article-1.122281" target="_blank">“screwed” Qaddafi in a real estate deal</a>. Wimp!</p>
<p>Look, don’t get me wrong: Trump is a boorish self-promoter — and worse, a literal “robber baron” — the sort of guy who’d invoke eminent domain to try <a href="http://www.ij.org/atlantic-city-nj-condemnation-latest-release" target="_blank">steal a retired widow’s house</a> so he can use it for a limousine waiting area. The GOP should be embarrassed to have him leading the pack.</p>
<p>But, “most militaristic”? Not by a long shot. As I argued in the <em>Federalist</em>, “on this issue, in this field, he’s not quite the embarrassment he should be.” Read the whole thing <a href="http://thefederalist.com/2015/08/17/trumps-biggest-lie-im-the-most-militaristic-person-in-this-race/" target="_blank">there</a>.</p>https://fee.org/articles/did-war-hawks-learn-anything-in-iraq/Did War Hawks Learn Anything in Iraq?Begrudgingly, possibly, maybe?2015-06-04T00:00:00-04:002015-06-04T00:00:00-04:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/8370/20150604_1shutterstock73343584002.jpg"/> <p>&ldquo;<a href="http://www.usnews.com/news/the-report/articles/2015/05/26/gop-agrees-bush-was-wrong-to-invade-iraq-now-what" target="_blank">GOP Agrees Bush Was Wrong to Invade Iraq, Now What?</a>&rdquo; &mdash; that&rsquo;s how the&nbsp;<em>US News </em>headline put it last week.</p>
<p>A good question, because it&rsquo;s not at all clear what that grudging concession signifies.</p>
<p>It&rsquo;s nice that 12 years after George W. Bush lumbered into the biggest foreign policy disaster in a generation, the leading Republican contenders are willing to concede, under enhanced interrogation, that maybe it wasn&rsquo;t the right call.</p>
<p>It would be nicer still if we could say they&rsquo;d learned something from that disaster.</p>
<p>Alas, the candidates&rsquo; peevish and evasive&nbsp;<a href="http://www.vox.com/2015/5/14/8607903/gop-candidates-iraq" target="_blank">answers to the Iraq Question</a> didn&rsquo;t provide any evidence for that. Worst of all was Jeb Bush&rsquo;s attempt to duck the question by using fallen soldiers as the&nbsp;<a href="http://abcnews.go.com/Politics/jeb-bush-suggests-hypothetical-questions-iraq-disservice-dead/story?id=31021145" target="_blank">rhetorical equivalent of a human shield</a>.</p>
<p>Ohio governor John Kasich&nbsp;<a href="http://www.dispatch.com/content/stories/local/2015/05/13/gov-john-kasich-talks-iraq.html" target="_blank">flirted with a similar tactic</a> &mdash; &ldquo;There&rsquo;s a lot of people who lost limbs and lives over there, OK?&rdquo; &mdash; before conceding, &ldquo;But if the question is, if there were not weapons of mass destruction should we have gone, the answer would&rsquo;ve been no.&rdquo;&nbsp;</p>
<p>That&rsquo;s how most of the GOP field eventually answered the question, with some version of the &ldquo;faulty intelligence&rdquo; excuse.</p>
<p>We thought Saddam Hussein had stockpiles of chemical and biological weapons and was poised for a nuclear breakout; it was just our bad luck that turned out not to be true; so the war was &mdash; well,&nbsp;<a href="http://thehill.com/policy/defense/242339-rubio-iraq-invasion-was-not-a-mistake" target="_blank">not a &ldquo;mistake,&rdquo;</a>&nbsp;insists Marco Rubio, just, er &mdash; whatever the word is for something you definitely wouldn&rsquo;t do again if you had the power to travel back in time.</p>
<p>As Scott Walker, who&rsquo;s been studying up&nbsp;<a href="http://www.washingtonpost.com/politics/the-making-of-scott-walker-statesman/2015/03/06/43b347b0-c286-11e4-ad5c-3b8ce89f1b89_story.html" target="_blank">super-hard</a>&nbsp;on foreign policy, explained: you can&rsquo;t fault President Bush: invading Iraq just made sense, based on&nbsp;<a href="http://politicalwire.com/2015/05/18/quote-of-the-day-933/" target="_blank">&ldquo;the information he had available&rdquo;</a>&nbsp;at the time.&nbsp;</p>
<p>Well, no &mdash; invading Iraq was a spectacularly bad idea based on what we knew at the time. If we&rsquo;d found stockpiles of so-called WMD, it would&nbsp;<em>still</em>&nbsp;have been a spectacularly bad idea.</p>
<p>Saddam&rsquo;s possession of unconventional weapons was a necessary condition in the Bush administration&rsquo;s case for war, but it wasn&rsquo;t &mdash; or shouldn&rsquo;t have been &mdash; sufficient to make that case compelling, because with or without chemical and biological weapons, Saddam&rsquo;s Iraq was&nbsp;<a href="http://www.cato.org/publications/commentary/case-missing-wmds">never a national security threat to the United States.</a>&nbsp;</p>
<p>Put aside the fact that, as applied to chem/bio, &ldquo;WMD&rdquo;&nbsp;<a href="http://www.cnn.com/2008/POLITICS/12/05/bergen.wmd/" target="_blank">is a misnomer</a>; assume for the sake of argument that President Bush&rsquo;s claim that &ldquo;<a href="http://www.nytimes.com/2003/01/29/world/state-union-iraq-issue-bush-enlarges-case-for-war-linking-iraq-with-terrorists.html" target="_blank">one vial, one canister, one crate</a>&rdquo; of the stuff could &ldquo;bring a day of horror like none we have ever known&rdquo; was an evidence-based, good-faith assessment of those weapons&rsquo; potential, instead of a ludicrous and cynical exaggeration.</p>
<p>Even so, you&rsquo;d still have to show that Saddam Hussein was so hell-bent on hitting the United States, he&rsquo;d risk near-certain destruction to do it.&nbsp;</p>
<p>There was never any good reason to believe that. This, after all, was a dictator who, during the 1991 Gulf War, had been deterred from using chemical weapons against US troops&nbsp;<em>in the middle of an ongoing invasion</em>.</p>
<p>As then-Secretary of State James Baker&nbsp;<a href="http://www.pbs.org/wgbh/pages/frontline/gulf/oral/baker/1.html" target="_blank">later explained</a>, the George H.W. Bush administration</p>
<p style="margin-left:.5in;">made it very clear that if Iraq used weapons of mass destruction, chemical weapons, against United States forces that the American people would demand vengeance and that we had the means to achieve it. &hellip;</p>
<p style="margin-left:.5in;">We made it clear that in addition to ejecting Iraq from Kuwait, if they used those types of weapons against our forces we would in addition to throwing them out of Kuwait, we would adopt as a goal the elimination of the regime in Baghdad.</p>
<p>Eleven years later, as the George W. Bush administration pushed for another war with Iraq, there wasn&rsquo;t any convincing evidence that Saddam Hussein had, in the interim, warmed up to the idea of committing regime suicide through the use of CBW.</p>
<p>Even the flawed October 2002&nbsp;<a href="http://fas.org/irp/cia/product/iraq-wmd.html" target="_blank">National Intelligence Estimate</a>&nbsp;(NIE) prepared during the run-up to the Iraq War vote concluded that &ldquo;Baghdad for now appears to be drawing a line short of conducting terrorist attacks with conventional or CBW against the United States, fearing that exposure of Iraqi involvement would provide Washington a stronger cause for making war.&rdquo;&nbsp;</p>
<p>By that time, with Bush 43&nbsp;<a href="http://www.nytimes.com/2002/10/08/national/08BTEX.html" target="_blank">sounding the alarm</a>&nbsp;about Iraq&rsquo;s &ldquo;growing fleet of manned and unmanned aerial vehicles that could be used to disperse chemical or biological weapons across broad areas [including] missions targeting the United States,&rdquo; it should have been apparent that the case for war rested on a series of&nbsp;<a href="http://www.goodreads.com/quotes/34764-the-whole-aim-of-practical-politics-is-to-keep-the" target="_blank">imaginary hobgoblins</a>.</p>
<p>As Jim Henley&nbsp;<a href="http://https/twitter.com/UOJim/status/314430755403075584" target="_blank">put it a couple of years ago</a>, &ldquo;In the annals of projection, the US claim that Saddam was building tiny remote-controlled death planes wins some kind of prize.&rdquo;</p>
<p>What if the Iraqi dictator instead passed off those weapons to terrorists, &ldquo;secretly and without fingerprints&rdquo;?</p>
<p>In the&nbsp;<a href="http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/bushtext_012803.html" target="_blank">2003 State of the Union</a>, that&rsquo;s what President Bush argued Saddam just might do:&nbsp;&ldquo;imagine those 19 hijackers with other weapons and other plans, this time armed by Saddam Hussein.&rdquo;</p>
<p>But the notion that Hussein was likely to pass chemical or biological weapons to Al Qaeda was only slightly less fantastic than the scenario that had him crop-dusting US cities with short-range,&nbsp;<a href="http://defensetech.org/2003/12/16/senator-white-house-warned-of-iraq-uav-attack/" target="_blank">Czech-built training drones</a>.</p>
<p>As my colleague Doug Bandow&nbsp;<a href="http://www.cato.org/publications/commentary/dont-start-second-gulf-war">pointed out at the time</a>: &ldquo;Baghdad would be the immediate suspect and likely target of retaliation should any terrorist deploy [WMD], and Saddam knows this.&rdquo;&nbsp;</p>
<p>I made similar arguments two weeks before the war in a piece called&nbsp;<a href="http://www.cato.org/publications/commentary/why-hussein-will-not-give-weapons-mass-destruction-al-qaeda">&ldquo;Why Hussein Will Not Give Weapons of Mass Destruction to Al Qaeda&rdquo;</a>: &nbsp;</p>
<p style="margin-left:.5in;">The idea that Hussein views a WMD strike via terrorist intermediaries as a viable strategy is rank speculation, contradicted by his past behavior.</p>
<p style="margin-left:.5in;">Hussein&rsquo;s hostility toward Israel predates his struggle with the United States. He&rsquo;s had longstanding ties with anti-Israeli terror groups and he&rsquo;s had chemical weapons for over 20 years. Yet there has never been a nerve gas attack in Israel.</p>
<p style="margin-left:.5in;">Why? Because Israel has nuclear weapons and conventional superiority, and Hussein wants to live.</p>
<p style="margin-left:.5in;">If he&rsquo;s ever considered passing off chemical weapons to Palestinian terrorists, he decided that he wouldn&rsquo;t get away with it. He has even less reason to trust Al Qaeda with a potentially regime-ending secret.</p>
<p>In its 2004 after-action reassessment of the administration&rsquo;s case for preventive war,&nbsp;<a href="http://carnegieendowment.org/files/Iraq3FullText.pdf">the Carnegie Endowment concluded</a>:&nbsp;</p>
<p style="margin-left:.5in;">There was no positive evidence to support the claim that Iraq would have transferred WMD or agents to terrorist groups and much evidence to counter it.</p>
<p style="margin-left:.5in;">Bin Laden and Saddam were known to detest and fear each other, the one for his radical religious beliefs and the other for his aggressively secular rule and persecution of Islamists.</p>
<p style="margin-left:.5in;">Bin Laden labeled the Iraqi ruler an infidel and an apostate, had offered to go to battle against him after the invasion of Kuwait in 1990, and had frequently called for his overthrow. &hellip;</p>
<p style="margin-left:.5in;">The most intensive searching over the last two years has produced no solid evidence of a cooperative relationship between Saddam&rsquo;s government and Al Qaeda. &hellip;</p>
<p style="margin-left:.5in;">The Iraqi regime had a long history of sponsoring terrorism against Israel, Kuwait, and Iran, providing money and weapons to these groups.</p>
<p style="margin-left:.5in;">Yet over many years Saddam did not transfer chemical, biological, or radiological materials or weapons to any of them &ldquo;probably because he knew that they could one day be used against his secular regime.&rdquo;</p>
<p>In the judgment of US intelligence, a transfer of WMD by Saddam to terrorists was likely only if he were &ldquo;sufficiently desperate&rdquo; in the face of an impending invasion. Even then, the NIE concluded, he would likely use his own operatives before terrorists.</p>
<p>Even without the particular relationship between Saddam and bin Laden, the notion that any government would turn over its principal security assets to people it could not control is highly dubious. States have multiple interests and land, people, and resources to protect. They have a future.</p>
<p>Governments that made such a transfer would put themselves at the mercy of groups that have none of these. Terrorists would not even have to use the weapons but merely allow the transfer to become known to US intelligence to call down the full wrath of the United States on the donor state, thereby opening opportunities for themselves.&nbsp;</p>
<p>You don&rsquo;t have to &ldquo;know what we know now&rdquo; to recognize the poverty of the case for war. You just had to know what we knew then.&nbsp;</p>
<p>Even so, it&rsquo;s possible that GOP hawks have learned&nbsp;<em>something</em>&nbsp;from the Iraq debacle, however loathe they are to admit it. Like Saddam&rsquo;s Iraq, the Syrian and Iranian regimes have long had unconventional weapons and links to terrorist proxies.</p>
<p>But I haven&rsquo;t heard even Lindsey Graham or Marco Rubio invoke the risk of terrorist transfer to make the case for war with Iran or Syria. Perhaps that&rsquo;s because it&rsquo;s as&nbsp;<a href="http://www.brookings.edu/research/articles/2008/03/iran-byman" target="_blank">unpersuasive an argument now</a>&nbsp;as it should have been then.&nbsp;</p>
<p>Besides, maybe it&rsquo;s asking too much to expect professional politicians to depart entirely from the sentiments of the people they want to vote for them. A recent&nbsp;<a href="http://dailycaller.com/2015/05/25/59-percent-of-early-state-republicans-say-invading-iraq-was-right/" target="_blank">Vox Populi/Daily Caller poll</a>&nbsp;asked Republican voters in early primary states: &ldquo;Looking back now, and regardless of what you thought at the time, do you think it was the right decision for the United States to invade Iraq in 2003?&rdquo;</p>
<p>Nearly 60 percent of them answered in the affirmative. The GOP&rsquo;s 2016 contenders may not have good answers to the Iraq Question, but, apparently, they&rsquo;re miles ahead of their constituents.</p>
<p style="text-align: right;"><a href="http://www.cato.org/blog/has-gop-learned-anything-iraq-debacle"><em>This post first appeared at Cato.org</em></a>.</p>https://fee.org/articles/go-directly-to-jail-the-criminalization-of-almost-everything/Go Directly to Jail: The Criminalization of Almost EverythingOur Legal System Poses a Grave Threat to Our Liberty2010-07-13T00:00:00-04:002010-07-13T00:00:00-04:00George C. Leefhttps://fee.org/people/george-c-leef/Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/17479/shutterstock_580106833.jpg"/> <p>
In the gigantic theater that is American politics, one of the favorite roles for politicians to play is that of the tough guy who is determined to &ldquo;crack down&rdquo; on something or other. Such actions are predictably cheered by whatever voting groups the politician wants to curry favor with. An often-heard campaign line is, &ldquo;Vote for me and I&rsquo;ll push legislation to make it a crime to. . . .&rdquo; We already have an enormous criminal code, but adding one more thing to it serves to show the voters that the pol really means business.</p>
<p>
Like most features of our politics this mania for the criminalization of behavior is harmful. As is usual with government, the unseen problems dwarf the seen benefits. The more we criminalize conduct that voters dislike, the more we put people who never intended any wrongdoing into the quicksand of criminal prosecution. With legions of prosecutors who are more interested in making names for themselves than in doing justice, Americans are living in an increasingly dangerous country.</p>
<p>
That&rsquo;s the point of <em>Go Directly to Jail</em>, edited by lawyer and Cato Institute writer Gene Healy. &ldquo;At one time,&rdquo; he writes, &ldquo;the common law doctrines of mens rea (&ldquo;guilty mind&rdquo;) and actus reus (&ldquo;guilty act&rdquo;) cabined the reach of criminal sanctions, but those protections have eroded dramatically over the past 50 years. Today it&rsquo;s possible to send a person to prison without showing criminal intent or even a culpable act. . . .&rdquo;</p>
<p>
Consider this case. Edward Hanousek worked for a railroad in Alaska. One day, a backhoe operator working under his supervision accidentally ruptured an oil pipeline while removing some boulders from the tracks. Hanousek, who wasn&rsquo;t even at the site of the accident, was nevertheless prosecuted for having violated the Clean Water Act, which makes it a crime if a &ldquo;negligent failure to supervise&rdquo; leads to any discharge that might pollute water. Hanousek was convicted for someone else&rsquo;s accident. His case was appealed to the Supreme Court, which declined to review this legal abomination. Americans must now worry about criminal prosecution for all sorts of conduct that a few decades ago hardly anyone would have thought should be illegal.</p>
<p>
The book has six chapters by different authors. Erik Luna&rsquo;s &ldquo;Overextending the Criminal Law&rdquo; explores the unfortunate tendency for politicians to use criminal sanctions as an all-purpose tool of social control. It&rsquo;s impossible to disagree with Luna&rsquo;s assessment that &ldquo;When the criminal sanction is used for conduct that is widely viewed as harmless . . . the moral force of the penal code is diminished, possibly to the point of near irrelevance. . . .&rdquo;</p>
<p>
In the second essay, &ldquo;The New Criminal Classes: Legal Sanctions and Business Managers,&rdquo; James V. DeLong observes that the spread of criminalization means that nearly anyone can fall victim to prosecution for some regulatory crime, and often the defendant finds that the law accords him a lower degree of protection for his rights than do old-fashioned criminals who rob and murder. The Fourth and Fifth Amendments have been subverted in the crusade to send people like Ed Hanousek to jail.</p>
<p>
Legal scholar Timothy Lynch, in &ldquo;Polluting Our Principles: Environmental Protection and the Bill of Rights,&rdquo; shows that the incentives for environmental regulators to produce &ldquo;results&rdquo; (that is, convictions to prove how dedicated they are to safeguarding the environment) lead to terrible travesties of justice. The vagueness of many environmental regulations gives the enforcers almost unfettered discretion to prosecute businesspeople. Lynch notes that individuals accused of environmental crimes are often subjected to procedures that the courts would not tolerate for normal criminal defendants. He calls it the &ldquo;environmental exception to the Bill of Rights.&rdquo;</p>
<p>
Galen Institute president Grace-Marie Turner discusses criminalization in medical care, specifically, the dangerous trend toward criminal prosecution in the futile crusade against Medicare and Medicaid fraud. An especially frightening feature of the law here is that the enforcers get to keep a percentage of the fines they impose.</p>
<p>
Editor Healy contributes a chapter on the rampant federalization of crime. To provide just one example, President Bush&rsquo;s Project Safe Neighborhoods has led to a surge in federal prosecutions for illegal firearms possession. Healy writes that this law &ldquo;violates the Tenth Amendment, clogs the federal courts, encourages a mindless zero tolerance policy and opens the door for every special interest group in Washington to politicize criminal justice policy.&rdquo;</p>
<p>
The book&rsquo;s final chapter, again by Erik Luna, examines the nation&rsquo;s sorry experience with federal sentencing guidelines, which he argues &ldquo;saps moral judgment from the process of punishment.&rdquo;</p>
<p>
The U.S. is off track in many, many ways. <em>Go Directly to Jail </em>leaves no doubt that our legal system is careening out of control and poses a grave threat to our liberty.</p>https://fee.org/articles/the-future-of-freedom-illiberal-democracy-at-home-and-abroad/The Future of Freedom: Illiberal Democracy at Home and AbroadWhat Is the Real Goal of Democratization?2010-07-02T00:00:00-04:002010-07-02T00:00:00-04:00Gene Healyhttps://fee.org/people/gene-healy/Fareed Zakariahttps://fee.org/people/fareed-zakaria/<img src="https://fee.org/media/15443/austrianschool.jpg"/> <p>Modern political discourse often treats democracy as if it were synonymous with liberty. In <em>The Future of Freedom</em>, Fareed Zakaria aims to refute that facile notion and reinvigorate the distinction between the two. As Zakaria puts it, pithily: &#8220;The execution of Socrates was democratic but not liberal.&#8221;</p>
<p>Zakaria&#8217;s book is an extended brief against the fetishization of democracy, and it&#8217;s exceptionally well-argued. The author echoes the great classical liberals in arguing that democracy is a means to an end, not an end in itself. <em>Liberty</em>, as Lord Acton said, is our highest political end. What we&#8217;re after—in developing countries and in our own country—isn&#8217;t a system where anything goes, so long as the majority decides. On the contrary, what we want is, first, liberty and law, and then and only then, majority rule. After the rule of law is established, the political process will, and should, open up. But to imagine that &#8220;all we need is free elections&#8221; is to fundamentally misconceive the problem of democratic development.</p>
<p>One of the more interesting sections of the book discusses the relationship of economic growth to participatory institutions. As a country gets richer and develops a middle class independent of the state, the prospects that its political process will open up are enhanced. Zakaria cites social-science data showing that, historically, when a country has passed $6,000 in per-capita income (in today&#8217;s dollars), its chances of successfully maintaining democratic institutions are virtually certain.</p>
<p>Wealth matters—but not just any kind of wealth. In fact, as Zakaria shows, wealth derived from natural resources can impede liberalization and the transition to democracy. Such unearned riches can be a curse, he explains. In autocracies without an independent source of wealth in the form of natural resources, the government has an incentive to provide a framework of neutrally administered laws that facilitate wealth generation, which can in turn provide revenue for the state. The independent middle class that emerges, in turn, has an incentive to hold the state accountable. But in &#8220;trust fund states&#8221; like Nigeria or Saudi Arabia, the governments have a ready source of revenue, and less incentive to liberalize.</p>
<p>With all that in mind, Zakaria proposes several countries as &#8220;the most likely prospects where democracy, if tried, could over time become genuine and liberal&#8221;: Romania, Belarus, Bulgaria, Croatia, Malaysia, Turkey, Morocco, Tunisia, and Iran. (Although Iran is an oil state, Zakaria includes it because &#8220;it has always had a strong non-resource-based economy as well.&#8221;)</p>
<p>You&#8217;ll notice a conspicuous omission from that list—Iraq, which Zakaria in a recent speech half-jokingly called &#8220;our 51st state.&#8221; What&#8217;s surprising, then, is how sanguine Zakaria is about our current quest to transform Iraq from a bureaucratic despotism into a commercial republic. In a passage drafted before the invasion of Iraq in March 2003, Zakaria writes, &#8220;Were the United States to dislodge Saddam and—far more important—engage in a serious, long-term project of nation-building, Iraq could well become the first major Arab country to combine Arab culture with economic dynamism, religious tolerance, liberal politics, and a modern outlook on the world.&#8221;</p>
<p>Yet Iraq fails most of the preconditions Zakaria outlines for successful transition to a liberal, democratic regime. It&#8217;s a trust-fund state, lacking an independent middle class. It has a level of literacy (58 percent) that&#8217;s low even for the Arab world. Unlike postwar Japan and Germany, it&#8217;s really three countries rather than one—fragmented among Sunnis, Shiites, and Kurds. And even within subnational groups Iraqi society is unusually tribal. As John Tierney has reported in the <em>New York Times</em>, half of all marriages in Iraq are between first or second cousins, and nepotism is seen &#8220;not as a civic problem but as a moral duty.&#8221;</p>
<p>Throughout <em>The Future of Freedom</em>, Zakaria treats liberalization and democratization as an incredibly subtle, complex, and contingent evolutionary process. What&#8217;s surprising, then, is that, when it comes to Iraq, he proceeds as if liberal institutions are the product of conscious design, easily transferable from one country to another by force and fiat. The rest of the book gives readers little reason to be sanguine about the prospects for turning Iraq into a liberal democracy.</p>
<p>Despite Zakaria&#8217;s unreasonably optimistic take on Iraq (a view from which he seems to have backed off recently), his book is a welcome reminder of what we should really be after when we talk loosely of &#8220;democratization.&#8221; His aim is not simply a political system in which everyone has a vote and a voice. It&#8217;s a system in which the most important matters—the security of life, property, and civil rights—are not subject to a vote at all.</p>
https://fee.org/articles/the-cult-of-the-presidency-americas-dangerous-devotion-to-executive-power/The Cult of the Presidency: America’s Dangerous Devotion to Executive Power from FEE2009-03-02T00:00:00-05:002009-03-02T00:00:00-05:00Brian Dohertyhttps://fee.org/people/brian-doherty/Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/20859/shutterstock_696631510.jpg"/> <p>Gene Healy relates a sad and disturbing “kids say the darndest things” anecdote in his new book. The story typifies an attitude toward government that Healy, senior editor at the Cato Institute, rightly identifies in his book’s title as <em>The Cult of the Presidency</em>. A little girl, on hearing that President Kennedy had been murdered in 1963, wondered sadly to her mother “where would we get our food and clothes from?”</p>
<p>That little girl with her bizarre beliefs about the powers and responsibilities of the president is a voting adult now—as are millions whose attitudes about government are at least somewhat like hers. She’s probably now wondering if our new president can fill the impossible role Americans expect of their chief executive.</p>
<p>As Healy demonstrates, the perceived responsibilities and powers of the president of the United States have metastasized dangerously since their original conception at the American founding. The president was meant merely to preside over the execution of the laws of the United States, not to be an all-powerful superhero unconstrained in an endless quest to right all wrongs, foreign and domestic. When President John Adams craved the title of “His Highness,” Congress would have none of it; Pennsylvania Senator William Macley called the notion “base,” “silly,” and even “idolatrous.”</p>
<p>Healy charts the resilience of this constrained vision of presidential power, even after the upheaval and power grabs of the Lincoln era. The accumulation of power and hubris at 1600 Pennsylvania Avenue accelerated with the rise to power and prominence of men such as Theodore Roosevelt (who wanted to legislate changes in the English language from the White House and started foreign military adventures without congressional approval) and Woodrow Wilson (who declared that God ordained him to be president and cheered a “spirit of ruthless brutality [in the] fiber of our national life. . . . [E]very man who refuses to conform will have to pay the penalty.”).</p>
<p>From Franklin D. Roosevelt on, all the traditional restrictions on the president’s powers crumbled. We find ourselves in a political world where, as in a 1992 presidential debate, candidates are asked to “make a commitment [to] meet [the] needs” of all Americans. Not a single candidate even raised his brow at the extraconstitutional implications of that request.</p>
<p>This book provides a depressing dissection of modern trends in political power—and in Americans’ conception of that power, which underlies the problem of executive overreach. As Healy notes, that makes any quick fix to the “cult of the presidency” unlikely. But the book also contains touches of delightful nostalgia for an America gone by.</p>
<p>One can’t help admiring such derided “do-nothing” presidents as Warren Harding. He gets sneered at by historians and political science professors for lacking the hubris of power, but he pardoned the peaceful protestors his predecessor Woodrow Wilson tossed in jail. Every American should feel a yearning for a past in which a presidential candidate like William Taft could say bluntly that the president “cannot create good times . . . cannot make the rain to fall, the sun to shine, or the crops to grow;” a world where it took five years after the third assassinated president for Congress to grant the holder of the office his own armed janissaries; a time when presidents before Wilson thought that giving their state of the union addresses in person was demagogic.</p>
<p>Healy rightly notes that Congress is complicit in the failure of the Founding Fathers’ system whereby jealousy of their respective prerogatives was supposed to keep any one branch of government from overpowering the others. Our craven Congress grants vague powers and then complains about how the executive uses them—both in war-making and domestic policy.</p>
<p>If Congress is to blame for giving way, the White House is to blame for pushing. Healy details the many ways in which the recent Bush administration championed a wildly expansive vision of executive power in the wake of 9/11. The administration’s leading scholar of executive omnipotence, John Yoo, formerly of Bush’s Office of Legal Counsel, once said in a public debate that the president might well be able to order the extralegal crushing of a child’s testicles if he had the proper national-security reason for doing so.</p>
<p>Gene Healy has ably cast down the idols of the cult of the presidency. But it remains a limited devotion in a larger cult: that of government itself. That cult’s complications and crises loom even larger than the presidency.</p>
https://fee.org/articles/blurring-the-civilian-military-line/Blurring the Civilian-Military LineShould Domestic Law Enforcement Be Militarized?2003-02-01T00:00:00-05:002003-02-01T00:00:00-05:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/24470/shutterstock_122631589.jpg"/> <p>
<em><a href="mailto:ghealy@cato.org">Gene Healy</a> is senior editor at the Cato Institute.</em></p>
<p>
The soldier&rsquo;s mission, as soldiers often phrase it, is &ldquo;killing people and breaking things,&rdquo; and they&rsquo;re trained accordingly. In contrast, police officers, ideally, are trained to operate in an environment where constitutional rights apply and to use force only as a last resort. Accordingly, Americans going back at least to the Boston Massacre of 1770 have understood the importance of keeping the military out of domestic law enforcement. That understanding is reflected in the Posse Comitatus Act (PCA) of 1878, which makes it a criminal offense to use U.S. military personnel as a police force.</p>
<p>
The phrase &ldquo;posse comitatus,&rdquo; Latin for &ldquo;the power or force of the county,&rdquo; refers to the sheriff&rsquo;s common-law power to call on the male population of a county for assistance in enforcing the laws. The PCA forbids law-enforcement officials from employing the U.S. military for that purpose. Congress passed the act in response to perceived abuses associated with the practice of using U.S. Army troops to police the Reconstruction-era southern states. But the PCA has a policy rationale that transcends its particular origins; as one federal court explained: &ldquo;It is the nature of their primary mission that military personnel must be trained to operate under circumstances where the protection of constitutional freedoms cannot receive the consideration needed in order to assure their preservation. The posse comitatus statute is intended to meet that danger.&rdquo;</p>
<p>
In the year since the terror attacks of September 11, however, we&rsquo;ve heard a slowly building chorus of calls to amend or weaken the act and to give the U.S. military a hands-on role in domestic security. In October 2001, Senator John Warner, ranking Republican on the Senate Armed Services Committee, told Deputy Secretary of Defense Paul Wolfowitz that the posse comitatus principle may have outlived its usefulness; Wolfowitz agreed. Though Secretary of Defense Donald Rumsfeld had insisted that there was no plan to seek changes in the law, in July 2002 the White House released its National Strategy for Homeland Security, which called for a &ldquo;thorough review of the laws permitting the military to act within the United States.&rdquo; Perhaps most troubling were the comments of General Ralph E. Eberhardt, head of the newly designated Northern Command, which directs all military forces within the United States: &ldquo;We should always be reviewing things like Posse Comitatus and other laws if we think it ties our hands in protecting the American people.&rdquo;</p>
<p>
Of course, where appropriate, we want constitutional and statutory constraints to &ldquo;tie the hands&rdquo; of the authorities in their pursuit of domestic security. Safety and security are not the only ends of government&mdash;as Lord Acton reminds us, liberty is our highest political end. The Posse Comitatus Act is, alas, a weak and porous barrier to military involvement in domestic law enforcement, but it&rsquo;s designed to protect both our liberty and our safety. Changed circumstances after September 11 provide no compelling reason to weaken it further.</p>
<p>
To understand just how implausible it is to suggest that the PCA ties the military&rsquo;s hands domestically, it&rsquo;s necessary to understand how the PCA works. The statute makes it a criminal offense for anyone to use U.S. armed forces to &ldquo;execut[e] the laws.&rdquo; But this does not bar any and all uses of armed soldiers for domestic law enforcement. First, the courts have held that &ldquo;executing the laws&rdquo; consists of hands-on policing: searching, arresting, and coercing citizens. Thus, the act does not prohibit the military from providing equipment, advice, and training to civilian authorities&mdash;even though such civil-military cooperation often works to inculcate a dangerous warrior ethos among domestic peace officers.</p>
<p>
Second, the PCA applies only to federal troops: army regulars and federalized National Guardsmen. If Guard units remain under the command of state governors, the PCA is unoffended&mdash;even if injudicious use of troops leads to events like the killing of four students at Kent State in 1970.</p>
<p>
Third, the act does not bar the use of federal troops even for hands-on policing, so long as Congress has passed a statutory exception to the PCA&mdash;and there are statutory exceptions in place that permit the military to operate domestically where an attack with weapons of mass destruction threatens imminent loss of human life. Finally, even though the act has clearly been violated any number of times since its passage, no one has ever been prosecuted for violating it.</p>
<h4>
How Would the Military Be Used?</h4>
<p>
To date, none of the prominent public figures calling for a revision of PCA have explained what sorts of operations they want the military to carry out in the domestic fight against terrorism. Putting aside fears about collateral damage to civilians from the deployment on the home front of troops trained to fight wars&mdash;where would it make sense from a security standpoint? No one&mdash;not Warner, not Wolfowitz, not Eberhardt&mdash;has come forward with a specific example of a situation in which soldiers should be given arrest authority.</p>
<p>
Nor should that be surprising: it&rsquo;s difficult to think of a domestic situation where military deployment would be useful in corralling terrorists. How can U.S. troops be effectively employed at home to prevent a shoe-bomber, a hijacker, or the release of nerve gas in a subway system? The cruel genius of asymmetric warfare is that it operates to neutralize the advantages the U.S. army enjoys against any conventional foe.</p>
<p>
The U.S. military is the most effective in the world, but it&rsquo;s nonetheless a blunt instrument&mdash;devastating in set-piece battles, but ill-suited to a home-front fight against al Qaeda saboteurs and assassins. That point was perhaps best illustrated on Thanksgiving weekend in 2001, when authorities in Florida stationed a tank outside Miami International Airport, as if the next terror attack would come in the form of an al Qaeda mechanized column.</p>
<p>
And the very bluntness of the military instrument makes it a dangerous tool to employ on American soil. The legacy of American military involvement in domestic affairs is not a proud one. As constitutional scholar David Kopel has noted, the U.S. army has been used repeatedly to suppress unionization and break up strikes, as in 1899 at Coeur d&rsquo;Alene, Idaho, when military forces imposed martial law on the area for two years. President Truman&rsquo;s unconstitutional seizure of U.S. steel mills during the Korean War was carried out by the U.S. Army. More recently, in 1981, Congress passed legislation designed to increase military involvement in the war on drugs.</p>
<p>
Misuse of this authority helped lead to the 1993 tragedy in Waco, Texas. Federal law enforcement authorities used false allegations of methamphetamine trafficking by the Branch Davidians to obtain military hardware and personnel. Indeed, it was U.S. Army Delta Force commanders who advised federal agents to launch a tank assault against the Branch Davidians&rsquo; dwellings. The result was more than 80 dead, including 27 children. And in 1997, a Marine anti-drug patrol shot and killed high-school student Esquiel Hernandez, who was shooting a .22 caliber rifle while tending goats on his own farm in Texas near the Mexican border. The Justice Department paid out $1.9 million to the Hernandez family as settlement of a wrongful death lawsuit.</p>
<p>
Despite the dangers that inevitably accompany the use of soldiers as police forces, civil-military separation continues to erode. Because the U.S. military is so devastatingly effective in the fights it&rsquo;s designed for, public officials have increasingly sought to employ it for fights it&rsquo;s not. Most recently, during the month-long hunt for the Washington, D.C.-area sniper, Secretary of Defense Donald Rumsfeld approved the use of Army RC-7 surveillance aircraft to find the killer terrorizing greater Washington. The low-flying planes, crammed with $17 million worth of infrared sensors and other surveillance technologies, are typically used for tasks like monitoring troop movements around the DMZ on the Korean Peninsula. Federal officials argued that they could help pinpoint the sniper&rsquo;s location.</p>
<h4>
Old-Fashioned Police Work</h4>
<p>
At the time, however, constitutional scholar and criminal-justice expert Stephen Halbrook predicted that when the sniper was caught, it would not be through use of high-tech military hardware, but through old-fashioned police work. Halbrook was right. In the end, the killers&rsquo; greed, a credit-card number, a fingerprint, ballistics work, and a witness identification of the car at a rest stop in Maryland led to the arrest of John Allen Muhammad and John Lee Malvo.</p>
<p>
What should we make of federal officials&rsquo; readiness to use the military to solve a domestic murder spree with no solid connection to international terrorism? First, it should be noted that use of the Army planes did not violate the PCA. If the Army had employed Delta Force counter-snipers on the ground, hunting Muhammad and Malvo, that would have been a clear violation of the Act and a serious threat to civil-military separation. But as noted, the courts define &ldquo;executing the laws&rdquo; as arresting, shooting, searching, and laying hands on or coercing citizens; they have not held that provision of advice or equipment constitutes execution of the laws in violation of the PCA.</p>
<p>
That does not mean that Pentagon involvement in the sniper hunt is no cause for concern, however. Federal officials&rsquo; eagerness to seek military help in this case suggests that we&rsquo;ll see more military involvement in high-profile investigations in the future. As former U.S. Representative Bob Barr put it, &ldquo;If you use this as a precedent, where do you then draw the line? The next time you have a sniper, do you bring the military in after two deaths?&rdquo; And even where the military&rsquo;s role is limited to advice, training, and provision of equipment, the erosion of the civilian-military line is troubling. After all, to the best of our knowledge, Army personnel at Waco limited themselves to provision of equipment and advice. Even that limited involvement helped lead to the greatest disaster in U.S. law-enforcement history.</p>
<p>
Increasingly, public officials are coming to view militarization of law enforcement not as a last resort for situations in which civil order breaks down entirely, but as a panacea to be used whenever public safety is threatened. In the midst of the sniper ordeal, then-Maryland Governor Parris Glendening announced he was considering using the National Guard to provide security at polling stations on election day. Put aside concerns about effectiveness (the snipers shot one victim who was standing less than 50 yards from a Virginia state trooper) and collateral damage to innocents (what, after all, are soldiers trained to do when they come under fire by a sniper?): consider the ominous image of armed soldiers surrounding polling places. It&rsquo;s an image one normally associates with a banana republic, not a free, democratic one.</p>https://fee.org/articles/states-rights-revisited/States' Rights RevisitedState Independence Checks Federal Aggrandizement1999-12-01T00:00:00-05:001999-12-01T00:00:00-05:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/24470/shutterstock_122631589.jpg"/> <p>Lamenting the Supreme Court&#8217;s recent batch of pro-federalism decisions, the <em>New York Times</em> termed the Court&#8217;s newfound affinity for states&#8217; rights “Supreme mischief,” “deeply disturbing” to right-thinkers everywhere. One expects such talk from dedicated cheerleaders for centralized power. What&#8217;s more disturbing, however, is the extent to which the <em>Times&#8217;s</em> perspective has gained credence among advocates of limited government. Modern libertarians, rightly concerned with what the Institute for Justice&#8217;s Clint Bolick has termed “grassroots tyranny,” ridicule and disparage the time-honored doctrine of states&#8217; rights.</p>
<p>It&#8217;s understandable that the under-informed general public associates states&#8217; rights with slavery, Jim Crow, Bull Connor&#8217;s police dogs, and “segregation forever.” But classical liberals ought to take a longer view. “States&#8217; rights” merely stands for the propositions that (1) the Constitution should be interpreted strictly with regard to the narrow set of enumerated powers granted the federal government; and (2) that the states can nullify or obstruct federal actions that violate the Constitution. As such, the doctrine has a long and honorable pedigree among advocates of limited government. States&#8217; rights, in the view of classical liberals like Lord Acton, was no mere excuse for states to violate the rights of their citizens. Rather, the independence of the states in the period before the Civil War served as an effective check on federal aggrandizement. As Acton put it, “Centralization finds a natural barrier in the several State governments.”</p>
<p>Modern libertarians tend to have a different perspective, believing that strong federal oversight is indispensable to securing liberty. For example, John McLaughry, head of the libertarian Ethan Allen Institute, says the doctrine of states&#8217; rights is little more than “a hoary legacy from the days of human slavery.” This view rests on a tendentious version of history, one quite at odds with Lord Acton&#8217;s, to the effect that in the nineteenth century, state governments were a more serious danger to individual freedom than the federal government. (That perspective is perhaps best encapsulated in Bolick&#8217;s <em>Grassroots Tyranny</em> [1993]. See also the Civil War history offered in “Reviving the Privileges or Immunities Clause” by Kimberly C. Shankman and Roger Pilon; Cato Policy Analysis No. 326, at <a href="http://www.cato.org/" target="_blank">http://www.cato.org</a>.)</p>
<p>The true story is more complicated, and, from a libertarian perspective, far more favorable to the states than the federal government. During the nineteenth century, the people, through the agency of their respective states, repeatedly and effectively resisted federal tyranny. A brief historical survey will make that clear. It will also, I hope, suggest some reasons why modern libertarians should rethink their hostility to states&#8217; rights.</p>
<h4>The “Reign of Witches” and the Kentucky and Virginia Resolutions</h4>
<p>The nation was still in its infancy, and the Bill of Rights not a decade old, when the Federalist party flagrantly violated the First Amendment with the Sedition Act. The Act criminalized uttering or publishing anything of a “false, scandalous, and malicious nature” with the intent to bring the government or its officers “into contempt and disrepute.” Anyone found guilty could be fined up to $2,000 and imprisoned for two years. The Federalists promptly put it to use in a crackdown aimed at their political enemies.</p>
<p>One Luther Baldwin was convicted of violating the act for little more than the rough expression of admirable libertarian sentiment. Stumbling into a Newark, New Jersey, saloon, during a parade for President John Adams, Baldwin asked what all the ruckus was. A cannon salute for President Adams, he was told. Baldwin exclaimed that it was all the same to him if the cannon was shot up Adams&#8217;s rear end. Other convictions were less amusing. David Brown of Dedham, Massachusetts, was sent to jail for 18 months for refusing Supreme Court Justice Samuel Chase&#8217;s order to name associates who shared Brown&#8217;s Jeffersonian views. Congressman Matthew Lyon of Vermont, an Irish-born republican radical, was imprisoned for criticizing President Adams&#8217;s alleged “continual grasp for power.” While in jail, Lyons was overwhelmingly re-elected to his seat.</p>
<p>Vice President Thomas Jefferson saw the Federalists&#8217; tyrannical rule as a “reign of witches.” He and James Madison determined to oppose the Alien and Sedition Acts through the agency of the state governments of Virginia and Kentucky. As historians Stanley Elkins and Eric McKitrick put it in their book <em>The Age of Federalism,</em> “the protest was taken up in a formal way by no less a power than the constituted legislatures of two states against an act of the national government.” Acting in secret, Jefferson drafted the Kentucky Resolutions, Madison, the Virginia ones. Each articulated the “compact” theory of the Union: that the states are equal partners in the federal union, each with the power to interpret the Constitution and thwart federal abuses thereof.</p>
<p>The Virginia Resolutions warned that “a spirit has in sundry instances, been manifested by the Federal Government&#8230; to consolidate the States by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.” The states, declared the Resolutions, “have the right and are in duty bound to interpose for arresting the progress of the evil.” Jefferson&#8217;s Kentucky Resolutions urged the other states to join Kentucky “in declaring [the Alien and Sedition] acts void and of no force.”</p>
<p>With Jefferson&#8217;s accession to the presidency, the “reign of witches” passed, as Jefferson ended prosecutions under the Acts. But the compact theory of the Union lived on, to be invoked again in the service of individual rights.</p>
<h4>Nullifying the Tariff of Abominations</h4>
<p>During the nullification “crisis” of 1828-33, the power of the states was again employed to counter federal abuses. In <em>For Good and Evil.&#8217; The Impact of Taxes on the Course of History,</em> Charles Adams describes the disproportionate burden that the federal tariff imposed on the Southern states: “The South exported about three quarters of its goods and in turn used the money to buy European goods, which carried the high import tax.” Most of the revenue was spent on internal improvements and other federal projects in the North.</p>
<p>Understandably, the South chafed at the burdens imposed by the tax system. Some of her most prominent political leaders argued that the Constitution granted no power to tax for the purpose of protecting industry, as opposed to raising revenue. With the tariff of 1828, the “Tariff of Abominations,” the battle was joined. The South Carolina legislature denounced the tariff, which brought duties to their highest pre-Civil War level, as “unconstitutional, oppressive, and unjust.”</p>
<p>Playing Jefferson&#8217;s role of 30 years before, Vice President John C. Calhoun secretly wrote South Carolina&#8217;s Exposition and Protest, in which he outlined the doctrine of nullification. According to Calhoun, state conventions, the same bodies that had ratified the Constitution, could nullify federal legislation that they considered to be in violation of that document. The federal government thereupon could only enforce the law if it secured a new constitutional amendment through the approval of three-fourths of the states.</p>
<p>Calhoun intended the doctrine as a moderate middle position short of the extreme remedy of secession. But soon, a military clash seemed imminent, as President Andrew Jackson denounced nullification and privately swore to hang Calhoun. In the end, though, South Carolina&#8217;s defiance forced a partial climb-down by the feds. Senator Henry Clay of Kentucky helped usher through a bill securing a 20 percent reduction in the tariff.</p>
<p>Disputes over the unjust federal revenue system would play a central role in bringing about the Civil War (contrary to most contemporary accounts, which emphasize slavery to the exclusion of almost everything else). The centrality of the tariff issue is revealed in Lincoln&#8217;s First Inaugural, in which he disclaimed any intention to interfere with slavery, but was adamant about collecting federal revenue via the tariff. Republican corporate statism and Northern manufacturing depend ed on the Union and a high tariff. As a troubled editorialist in the March 18, 1861, <em>Boston Transcript</em> put it: “The difference is so great between the tariff of the Union and that of the Confederated States, that the entire Northwest must find it to their advantage to purchase their imported goods at New Orleans rather than at New York &#8230;. [The government] would be false to all its obligations, if this state of things were not provided against.”</p>
<h4>Personal Liberty Laws</h4>
<p>Ironically, the controversy over fugitive slaves would find Southerners clamoring for a strong federal role and cursing the doctrine of nullification. In his <em>Battle Cry of Freedom: The Civil War Era,</em> historian James M. McPherson notes a tension in Southern appeals to states&#8217; rights before 1860: “On all issues but one, antebellum southerners stood for state&#8217;s rights and a weak federal government. The exception was the fugitive slave law of 1850, which gave the national government more power than any other law yet passed by Congress.” The South&#8217;s deviation from principle on this point stemmed in part from economic motives: the federal government&#8217;s assistance in recovering escaped slaves made the peculiar institution more secure. But those Northerners who opposed slavery fought back with a states&#8217;-rights-based resistance to the tyrannical and unjust fugitive slave laws.</p>
<p>The federal Fugitive Slave Law of 1793 authorized slave owners and their agents to cross state lines and recapture fugitive slaves by force, bringing them before local magistrates to prove ownership. Under the law, the deck was stacked against the purported fugitive, who lacked the protection of habeas corpus and jury trial, and had no right to testify in his own behalf. Small wonder, then, that Southern bounty hunters were less than meticulous in ensuring they&#8217;d captured the right person.</p>
<p>Most of the Northern states responded with “personal liberty laws,” providing the fugitive with the procedural protections denied him by the federal statute, and in several cases subjecting slave hunters to kidnapping charges. In Vermont, for example, all fugitives were declared free, and anyone who attempted to capture one could be subject to 20 years imprisonment or a fine of $10,000.</p>
<p>Not even the Supreme Court could deter the North from the path of resistance. When the Court overturned a kidnapping conviction under Pennsylvania&#8217;s personal liberty statute, and voided the statute itself, Pennsylvania merely enacted another. Massachusetts was equally open in its defiance of federal authority. Its legislature passed a law providing-that: “No judge of any court of record in this Commonwealth.., shall take cognizance or grant a certificate in cases that may arise under the third section” of the Fugitive Slave Law of 1793. (Northern defiance of Supreme Court decisions on the slave issue would continue when the Court issued its infamous 1857 opinion in <em>Dred Scott.</em> The Maine legislature, for example, was one of several Northern states to declare that <em>Dred Scott</em> was “not binding, in law or in conscience, upon the government or citizens of the United States.” (Shades of George Wallace!)</p>
<p>To appease an increasingly indignant South, Congress in 1850 passed an even harsher fugitive slave statute. Under that law, proceedings were to be held before (newly created) federal “commissioners,” who would only receive half as much for setting the captive free as they would for ruling in favor of his purported owner. All expenses associated with seizing and transporting the captive would be paid by the federal government.</p>
<p>Northern states found the fugitive slave law of 1850 harder to nullify, since it cut state courts out of the process. Still, abolitionists and their “vigilance committees” mounted vigorous resistance to the bounty hunters by force of arms. In 1851, the federal government felt it necessary to make a show of force in response to that resistance. To assist in the recapture of Thomas Sims, a 17-year-old escaped slave working in Boston as a waiter, the reds provided sufficient firepower to ensure that no band of abolitionist vigilantes could free him. When the federal commissioner ruled for Sims&#8217;s owner, 300 armed federal deputies and soldiers led Sims and his captor from the courthouse to the navy yard, where 250 more federal troops waited to put them on a ship heading South.</p>
<p>Every year, in high school history classes throughout the country, Americans learn a story intended to illustrate the beneficence of the federal government: in 1957, Arkansas governor Orval Faubus vowed to prevent the integration of Little Rock&#8217;s Central High School; President Eisenhower sent in federal troops to protect black schoolchildren from white Southern mobs. Students might get a more balanced picture of the federal role in race relations if teachers juxtaposed the story of Little Rock&#8217;s Central High with the story of Thomas Sims.</p>
<h4>Libertarian Centralism</h4>
<p>The above examples should not be taken to indicate that the states are natural defenders of liberty, organic extensions of the “People” that can be trusted to protect individual rights. Anyone familiar with zoning laws should know better than to embrace such a romantic notion. Instead, this historical survey suggests that the feds are unlikely to be better guardians of individual liberty than the states, and that divided sovereignty can serve as a check against federal oppression.</p>
<p>These examples also undermine the standard account of antebellum federalism, which amounts to public-school history: statist parables designed to make us feel grateful for the presence of our Federal Protector. If the issue were merely historical accuracy, there would be little reason to quibble. But this history is invoked, even by prominent libertarian legal analysts, to justify a particular political program. These scholars, who might be called “libertarian centralists,” view the federal government as an indispensable partner in the struggle to protect individual rights. To that end, the libertarian centralists have advanced a number of policy proposals that should give classical liberals pause—among them: Congress should be free to comprehensively redesign state and municipal codes using the enforcement powers of the Fourteenth Amendment; using the same powers, Congress can legislate directly on matters affecting liberty, with statutes such as the Church Arson Protection Act; and the Supreme Court should depart from constitutional text and engage in moral theorizing when exercising the power of judicial review. Each of these proposals represents a rather dramatic increase in federal authority over the states. The idea that such increased authority will be used to protect liberty rather than to abuse it, represents, like a second marriage, the triumph of hope over experience.</p>
<p>For example, Bolick, in June 7, 1995, testimony before the House Small Business Committee&#8217;s subcommittee on regulation and paperwork, said that “Congress has the power to enforce the 14th Amendment through appropriate legislation. It should use this power to enact an Economic Liberty Act. The provisions are simple: any federal or state law that restrains entry into a business or occupation must be narrowly tailored to a legitimate public health, safety, or public welfare objective.&#8217;‘ This appears unobjectionable until one contemplates what that plenary power would mean in the hands of welfare statists.</p>
<p>Another example comes from Roger Pilon, director of the Cato Institute&#8217;s Center for Constitutional Studies. In a June 18, 1996, <em>Washington Post</em> op-ed, Pilon wrote, regarding the federal Church Arson Prevention Act, “There is, however, a proper basis for Congress to act in the case at hand. It is the 14th Amendment&#8230; [I]f state measures prove inadequate and there is evidence available to Congress that federal intervention is necessary, there is ample authority under the 14th Amendment for Congress to act.”</p>
<p>And in a 1988 <em>Cornell Law Review</em> article titled “Reconceiving the Ninth Amendment,” Boston University law professor Randy Barnett wrote that “Given that the Fourteenth Amendment extends the protection of constitutional rights to acts of state governments, the Ninth Amendment stands ready to respond to a crabbed construction that limits the scope of this protection to the enumerated rights.” Again, although it sounds benign, this view is unjustifiably confident that the federal government won&#8217;t use the power to enforce unenumerated “positive welfare rights” on the states.</p>
<p>Patrick Henry, arguing against ratification of the Constitution, admonished Virginians to “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it, but downright force: Whenever you give up that force, you are inevitably ruined.” The states did not voluntarily “give up” that force in 1861-65; it was wrested from them by federal aggression. Before the Civil War, individuals were protected from centralized coercion by multiple, divided sovereignties, competing in their interpretations of the national charter, and backing their respective interpretations with force. After that war, individuals were confronted with a powerful unitary state, one that justified its aggression—domestic and foreign with appeals to “liberty.”</p>
<p>Libertarian centralists assure us that we can restore true liberty by gaining influence over that state and making its institutions work for us. The history of American federalism suggests a different solution. If there is a libertarian future, it lies in dividing sovereignty in nullification and secession: opposing Power with Liberty at every turn; hammering every fault line in an attempt to crack the edifice; dividing and diminishing Power, in the hope that individuals will be better able to overcome it or, failing that, escape it. Any other route is a diversion, and a potentially dangerous one at that.</p>
https://fee.org/articles/star-spangled-men-americas-ten-worst-presidents-by-nathan-miller/Star-Spangled Men: America's Ten Worst Presidents by Nathan MillerWhat Qualities Should We Value in a President?1999-03-01T00:00:00-05:001999-03-01T00:00:00-05:00Gene Healyhttps://fee.org/people/gene-healy/<img src="https://fee.org/media/17479/shutterstock_580106833.jpg"/> <p>Scribner • 1998 • 272 pages • $23.00</p>
<p><em>Gene Healy is a student at the University of Chicago Law School.</em></p>
<p>Historians who evaluate American presidents suffer from a bias against inaction. In the conventional view, great presidents are the nation builders and the war leaders; the failures are the ones who “never did anything.”</p>
<p>Nathan Miller, author of <em>Star-Spangled Men: America&#8217;s Ten Worst Presidents</em>, shares the conventional bias. For example, he indicts Silent Cal Coolidge with Mencken&#8217;s faint praise: “He had no ideas, and was not a nuisance.”</p>
<p>Those of us who favor limited government see it differently. This would have been a happier century by far if the worst that could be said of any president was, “He had no ideas, and was not a nuisance.” One (unintended) virtue of Miller&#8217;s book, then, is that it reminds us of some of the forgotten men who have held America&#8217;s most powerful office, yet somehow managed to leave well enough alone.</p>
<p>Miller picks his losers by asking, “How badly did they damage the nation they were supposed to serve?” What&#8217;s strange, then, is that the presidents he selects were mostly peacetime leaders who did little perceptible damage to the Republic and its institutions.</p>
<p>Take Coolidge, whom Miller writes off as “a reluctant refugee from the nineteenth century.” Miller fairly sneers at Coolidge&#8217;s emphasis on fiscal probity and laissez faire. Unable to find much to criticize in the uninterrupted prosperity of Coolidge&#8217;s tenure, Miller tries a cheap shot: Coolidge&#8217;s “penny-pinching refusal to cancel [the war] debts contributed to the rise of Adolf Hitler.” Well, maybe. But as long as we&#8217;re doling out responsibility for Nazi atrocities, why don&#8217;t we give some to Woodrow Wilson? Wilson&#8217;s dragging the United States into World War I allowed the Allies to impose a punitive peace on Germany in the first place. Why, then, does Miller consider Wilson a “near great” president?</p>
<p>Unlike Wilson, Coolidge was never awake for long enough to do much damage; as Miller recounts, he slept 11 hours a day. During his waking hours, Silent Cal&#8217;s sound instincts allowed him to hew to the presidential equivalent of the Hippocratic Oath. As Coolidge put it, “Nine-tenths of a president&#8217;s callers at the White House want something they ought not to have. If you keep dead still they will run out in three or four minutes.”</p>
<p>Miller&#8217;s chapter on William Howard Taft inspires reflection on the varieties of presidential obesity. Mencken saw Grover Cleveland&#8217;s great bulk as indicating a kind of implacable strength. But Taft&#8217;s girth reflected placidity and inaction, complementing his sedate view of the presidency: “the president cannot make clouds to rain, he cannot make the corn to grow, he cannot make business to be good.” Miller rates Taft as the ninth worst, but his tenure in the White House was marked by peace and prosperity.</p>
<p>Warren G. Harding receives the most undeservedly rough treatment of any president examined. From a classical liberal perspective, Harding was arguably the greatest president of the twentieth century. He initiated the largest spending cut in history—a 40 percent reduction from Wilson&#8217;s last peacetime budget. And Harding&#8217;s good nature and liberal instincts led him to overrule his political advisers and pardon Socialist presidential candidate Eugene Debs. Debs had been jailed during Wilson&#8217;s jihad against opponents of World War I, but Harding turned him and other dissenters loose; “I want [Debs] to eat his Christmas dinner with his wife,” he said. The scandals surrounding Harding&#8217;s administration push him near the top of Miller&#8217;s hit list. But, as Miller notes, he never took “so much as a nickel” from any of his corrupt cronies.</p>
<p>Despite the author&#8217;s depressingly conventional perspective on presidential greatness, <em>Star-Spangled Men</em> is tremendously enjoyable. Miller can turn a memorable phrase: (for example, he writes that Kissinger “looked like a Bronx Butcher and operated with the cynicism of a Renaissance Cardinal”) and has an eye for the kind of detail that makes reading history fun.</p>
<p>Read with the proper attitude, <em>Star-Spangled Men</em> inspires reflection on what we should value in a president.</p>